The implications of the Federal Circuit's Blue & Gold waiver rule - pursuant to which a disappointed offeror waives any protest grounds it may have had to the terms of a solicitation that the offeror could have, but failed to, raise pre-award - continues to reverberate in unexpected ways when applied to real-life procurement situations. In VS2, LLC v. United States, ' Fed. Cl. ' (Fed. Cl. 2021), the Court of Federal Claims ("COFC") declined to further expand the Blue & Gold waiver rule to all challenges to a procurement action that could have been made pre-award, signaling that the edge of the Blue & Gold sword may be starting to dull and its reach limited.
In our two prior blog articles in this series, we examined two such situations where application of the waiver rule produced diametrically different outcomes. In our article on Inserso Corp. v. United States, 916 F.3d 1343 (Fed. Cir. 2020), we examined a split-panel decision in which the waiver rule was applied to bar a contractor's post-award organizational conflict of interest protest grounds, because according to the majority, "the law and facts" in existence pre-award made it reasonably known to the contractor that a procurement error was likely to occur under the terms of the solicitation. In our follow-up article on Boeing Co. v. United States, 968 F.3d 1371 (Fed. Cir. 2020), however, we discussed how the panel in that case reached a different conclusion with respect to a post-award claim involving the Government's application of a mandatory regulation to a contract governed by the Cost Accounting Standards ("CAS"). Specifically, in Boeing, the Court ruled the contractor did not waive its claim by not protesting an apparent conflict between the regulation and the CAS statute before award, because to have done so would have been "futile" given the mandatory nature of the regulation. These different results led us to analogize the Blue & Gold waiver rule as creating a kind of gambling transaction for government contractors. To borrow and modify a phrase from the late, great Kenny Rogers' 1978 hit single, "The Gambler," the waiver rule forces contractors to simply "know when to protest" - without clear, consistent guidelines as to how they should "know," what they should "know," or by "when" - lest they risk inadvertently waiving their protest grounds in a post-award bid protest action.
A year later, the waiver rule was thrust once again into the crosshairs, this time before the COFC. Fortunately for contractors, the COFC declined an invitation by the Government and the intervenor to...
